Discussion on the law that applies to or affects Australia's emergency services and emergency management, by Michael Eburn, PhD and Barrister.

Judge dismisses class action over Victoria’s ‘Gazette bushfire’

In Block v Powercor [2019] VSC 15 Dixon J dismissed a class action against Powercor over its alleged negligence in failing to protect a power line from the risk of a falling tree. At [18]:

The circumstances of the contact between the Tree and conductor causing the fire are uncontested … At approximately 9.15pm on 17 March 2018, the Tree fell. Block alleges that the Tree failed approximately two metres above ground level and fell in a south-east direction onto one or both of the conductors on the powerline to the north of a pole (Powercor asset number 700184, referred to as ‘pole 2’). That contact caused the western conductor to fail and fall to the ground where it discharged electricity igniting the immediately surrounding vegetable matter and causing the fire which spread, becoming the Gazette bushfire.

It was alleged that Powercor maintained a clearance of 20m between its powerline and a commercial plantation, but that many of the trees were taller than 20m ‘with canopies extending into the clearance zone’ ([19]). Trees that were taller than the clearance zone was wide posed a risk of impacting the power line should they fall. The plaintiff claimed that the defendant was under a duty to inspect the trees adjacent to the powerline (of which there were hundreds), that is an ‘alleged responsibility to keep the whole or any part of a tree clear of the powerline’ ([20]) both as it grew, and should it fall. There was no evidence as to why this otherwise healthy tree, fell. At [23]:

Block’s allegations of Powercor’s duties are not directed at the Tree, but rather at the blue gum plantation or at least so much of it as was higher than the distance from the tree trunk to the conductor. Block alleges that had there been no negligence, the Tree would have been removed or pruned along with hundreds of other trees that were located at an ‘unsafe’ distance from the powerline.

Summary dismissal of a claim, that is rejecting the claim even before evidence has been called, is not common but may be done where the judge is of the view that the ‘proceeding ‘has no real prospect of success’’ ([85]). And at [89]:

Powercor accepted that it carried a high onus of persuasion that Block should be denied a trial on evidence because the three pleaded causes of action have no real prospect of success.

Both the obligation of Powercor to maintain tree clearnance, and the power to take action to meet that obligation, were set out in various statues, regulations and Codes of Practice. Any alleged duty of care had to be consistent with those statutory provisions (ie there could not be a common law duty that required Powercor to do something that Powercor was not authorised to do or that failed to take into account the factors that Powercor was obliged to take into account). Dixon J traced the extensive history of legislation in this area from 1976 to present time. At [148] he said:

From this excursion through legislative history what clearly emerges is, as Powercor submitted, a carefully devised balancing of the obligation to remove vegetation in order to avoid contact with powerlines and the obligation to preserve vegetation in the environment, evident from objections to destructive and excessive pruning of vegetation. In developing this balance, the regulations have not extended to identifying an obligation to remove the trees that may fall, irrespective of cause or reason, and make contact with a powerline. An exception is made in the case of transmission lines…

But the line, in this case, was a distribution line, not a transmission line ([48]). THe judge continued (at [151]):

Bearing this historical context in mind… [Powercor] was a distribution company and as such is responsible for keeping the whole or any part of the tree clear of an electric line within its distribution area in accordance with the regulations and Code where the standards and practices to be adopted and management procedures to be implemented by responsible persons are specified.

The plaintiff argued that any tree that is ‘physically able to come into contact with a powerline if it fell’ was not ‘clear of an electric line’. Powercor argued that given the historical context, the ‘concept of coming into contact must be more restrictively construed’ ([152]). His Honour said (at [153]-[154]):

I prefer Powercor’s contention… Vegetation is clear of a powerline if unlikely, rather than unable, to come into contact with the powerline in foreseeable local weather conditions. The defining feature that is employed in assessing probability is the hazardous nature of vegetation. While a 30 metre tree on the edge of a clearance space is able to fall and make contact with the powerline, it is unlikely to do so unless it is a hazard tree, as defined.

And the tree in question did have any condition to meet the definition of a ‘hazard tree’. His Honour continued ([157]):

The statutory regime imposed no specific responsibility on Powercor to remove trees in the vicinity of a two-phase 22kV distribution powerline that will enter the minimum clearance space around that line simply if the tree inexplicably falls, either in express terms or by implication. The positive obligation imposed on Powercor was to ensure that no part of a tree was within the minimum clearance space for a span of an electric line. It was not suggested that such obligation was breached. That obligation was only extended to trees beyond the minimum clearance space in relation to hazard trees or transmission lines, which is not the pleaded case. Neither the Guide, nor the regulatory documents applicable to commercial plantations, establish that Powercor was responsible for clearing trees within a wider 20-metre clearance zone, but regardless it was not pleaded that there was a breach of the 20-metre clearance zone.

It followed that Powercor had meet the obligations imposed by the legislation. The plaintiff also relied on the common law. Under common law, a duty of care arises where all the circumstances the defendant should take steps to protect the plaintiff. In this case the plaintiff started with the argument that it was ‘reasonably foreseeable that a discharge of electricity from a powerline could ignite a fire’. This, it was argued, gave rise to a duty to assess and manage trees that could fall across its powerline ([179]). Foreseeability of harm is however not enough to establish a duty of care. Apart from foreseeability the defendant must have the power to Act: ‘A common law duty to act in a particular way cannot arise unless there is authority or power to act’ (at [181]). His Honour (at [188]-[189]):

… upheld Powercor’s submission that it did not have the power to perform the acts Block asserted it was required to undertake, namely pruning or removing non-hazard trees outside the minimum clearance space that possibly might fail and fall across the cleared zone into a position where such trees might not be clear of the powerline.

For these reasons, the plaintiffs’ allegations of foreseeability, and foreseeability combined with power, have no real prospect of establishing a common law duty of care.

And at [202]:

The core of Block’s complaint is that Powercor did not design and implement a system that was capable of reasonably mitigating the risk of plantation trees falling onto or otherwise coming into contact with an electric line. Powercor had other obligations that preserved environmental considerations in the balance of the decision about clearance. The risk of bushfire caused by a 30 metre tree failing and coming into contact with the powerline was not far-fetched or fanciful, but the performance of an obligation … to clear a 30 metre strip of healthy blue gum trees alongside the powerline would plainly distort the statutory scheme for tree clearance. Subject to exceptions that are not made relevant on the pleaded case, Powercor was not permitted to remove a healthy native tree from the land of another beyond the clearance space.

Discussion

Regardless of the consequences, the outcome of this case would sound consistent with most people’s expectations. The defendant was able to point to legislation and relevant codes of practice and confirmed that it had acted in accordance with those requirements. It had managed its powerlines both as it was required, and empowered to do. It did not have to do more and more importantly did not have the authority to do more. In those circumstances, Dixon J held that the plaintiff’s claim in negligence had no prospect of success. It also reminds us that just because there is a poor outcome (in this case the fire) it does not follow that the person who caused the damage was negligent or is liable.

It is not common for a judge to dismiss a case without hearing evidence. The decision is based only on the case as set out in the court documents, so there is a risk of injustice. It is however necessary to have the power to dismiss hopeless cases rather than put the defendant and the court to the time and expense of defending the matter.

I have previously noted that electrical companies have settled bushfire claims – Bushfires; the price we pay for electricity(May 20, 2014). The plaintiff’s may have had some confidence or expectation that the defendant would come up with an offer, but at least at this first stage, Powercor stood their ground with, from its perspective, success.